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ARGUMENT OF DANIEL C. FINN. 



To the Committee on Indian Affairs of the House 
. of Representatives. 

Mr. Chairman and Gentlemen of the Committee : 

I appear before your committee, by request, as one who, 
after an intimate acquaintance of three years, feels a deep 
interest in the future welfare of the Indian people who in- 
habit the Indian Territory. 

These people have adopted civilized customs, made con* 
siderable progress in education_, a majority are members 
of Christian churches, are cultivating habits of industry, 
and will in time become successful and prosperous agri- 
culturists and tradesmen. 

This people, once numerous, powerful and truly inde- 
pendent, were found by our ancestors in the quiet and un- 
disturbed possession of an ample domain. 

They have been gradually sinking beneath our superior 
policy, our arts, and our arms ; have yielded up their lands 
by successive treaties, each of which has contained a 
solemn pledge and guaranty of the residue, until they re- 
tain no part of their formerly extensive country. 

I will not dwell upon the familiar history of this people 
while in their former home east of the Mississippi. 

It is sufficient to say that the covetous eye of the slave- 
holder viewed their beautiful and rich valleys, who raised 
the cry that these Indians were in the way, and stopped 
the progressive wave of civilization. 

The pressure brought to bear upon them was so great 
as to '^ let slip the dogs of war," and they were compelled 
to surrender their homes and all they held sacred to the 



Southern planter, for sugar, cotton, and tobacco planta- 
tions. 

The best interests of a free and noble people were sacri- 
ficed to appease the insatiate demands of that damnable 
institution, slavery, with cotton as king. 

But forty years have passed away since this people passed 
over the ^' Father of Waters " to the country set apart for 
them, and which they now hold by treaties, each of which 
contains a solemn guarantee th;it they and their descend- 
ants shall have it for a perpetual home. 

These treaties were based on a law of Congress, author- 
izing the President of the United States to convey the land 
stipulated therein, for a recognized valuable considera- 
tion, by letters patent. 

The Chief Magistrate of our nation pledged the faith 
and honor of the nation that these lands should be theirs, 
a secure dwelling place,, as long as grass grows and waters 
run. 

Belying upon the faith of that Government, which 
boasts of its freedom, equality and justice to all men, 
without regard to race, color^ or former condition, they 
have long since laid aside the habits and customs of their 
fathers and adopted those of their white neighbors. 

They now have governments truly republican both in 
form and spirit, and are educating their people to love 
the institutions of our fathers, and they themselves are the 
best judges and should be allowed to determine when to 
incorporate these governments with that of the United 
States. 

And now, sir^ referring to treaties and laws, I will show 
their rights to these lands, to the management of their 
own local affairs, and to the privilege of self-government, 
free from the encroachment of those who always see supe- 
riority of soil, a delightful climate and landscape beauty 
where Indians dwell. 



I call your attention to an act of Congress, approved 
May 28, 1830, which reads as follows : 

'^ Be it enacted, c&c, That it shall and may be lawful 
for the President of the United States to cause so much of 
any Territory belonging to the United States west of 
the river Mississippi, not included in any State or organ- 
ized Territory, and to which the Indian title has been ex- 
tinguished, as he may judge necessary, to be divided into 
a suitable number of districts, for the reception of sucb 
tribes or nations as may choose to exchange the lands 
where they now reside, and remove there; and to cause 
each of said districts to be so described, by natural or arti- 
ficial marks, as to be easily distinguished from every 
other. 

Sec. 2. And he it further enacted , That it shall and 
may be lawful for the President to exchange any or all of 
such districts, so to be laid off and described, with any 
tribe or nation of Indians now residing within the limits 
of any of the States or Territories and within which the 
United States have existing treaties, for the whole or any 
part or portion of the Territory claimed and occupied by 
such tribe or nation, within the bounds of any one or 
more of the States or Territories, -v^^here the land claimed 
and occupied by the Indians is owned by the United 
States, or the United States are bound to the State within 
which it lies to extinguish the Indian claim thereto. 

Sec. 3, And he it further enacted^ That in the making of 
any such exchange, or exchanges, it shall and may be 
lawful for the President solemnly to assure the tribe or 
nation with which the exchange is made that the United 
States will forever secure and guarantee to them, and 
their heirs and successors, the country so exchanged with 
them ; and, if they prefer it, that the United States will 
cause a patent or grant to be made and executed to them 
for the same : Provided alioays, that such lands shall re- 
vert to the United States if the Indians become extinct or 
abandon the same. 

Sec. 6. And he it further enacted. That it shall and may 
be lawful for the President to cause such tribe or nation 
to be protected at their new residence against all inter- 
ruption or disturb' -nee from any other tribe or nation of 
Indians, or from r,ny other person or persons whatever." 



After the passage of the above recited act the President 
of the United States proceeded to execute the same by 
treaty stipulations. 

The treaty with the Creeks, of 1830, article li, says: 

y The Creek country west of the Mississippi shall be 
solemnly guaranteed to the Creek Indians, nor shall any 
State or Territory ever have a right to pass laws for the 
government of such Indians, but they shall be allowed to 
govern themselves, so far as may be compatible with the 
general jurisdiction which Congress may think proper to 
exercise over them ; and the United States will also defend 
them from the unjust hostilities of other Indians, and will 
also, as soon as the boundaries of the Creek country west 
of the Mississippi are ascertained, cause a patent or grant 
to be executed to the Creek tribe, agreeably to the third 
section of the act of Congress of May 28, 1830, entitled 
* an act to ])rovide for an exchange of lands with the In- 
dians residing in any of the States or Territories, and for 
their removal west of the Mississippi.' " 

The second article of the treaty of 1833 with the Creeks 
clearly defines the boundary of their country, and the 
third article, reads as follows : 

'*The United States will grant a patent, in fee-simple, 
to the Creek Nation of Indians for the land assigned said 
nation by this treaty or convention, whenever the same 
shall have been ratified by the President and Senate of 
the United States ; and the right thus guaranteed by the 
United States shall be continued to said tribe of Indians, 
so long as they shall exist as a nation and continue to oc- 
cupy the country hereby assigned them." 

In the treaty with the Cherokefes, made in 1835, in pur- 
suance of the aforesaid act of Concfress, the first and 
second sections define the boundaries^ while article 3d 
contains the followino: : 

"The United States also agree that the lands above 
ceded by the treaty of February 14^ "833, including the 
outlet, and those ceded by this treaty, shall all be in- 
cluded in one patent, executed to the Cherokee Nation of 



Indians by the President of the United States, according 
to the provisions of the act of May 28, 1830." 

Article 5th of the same reads as follows : 

*' The United States hereby covenant and agree that 
the lands ceded to the Cherokee Nation in the foregoing 
article shall in no future time, without their consent, be 
included within the territorial limits or jurisdiction of 
any State or Territory." 

The Government of the United States has made similar 
treaties with the Choctaw Nation containing the same 
guaranties. 

In accordance with the heretofore recited acts and trea- 
ties, the President of the United States executed the fol- 
lowing Letters Patent to the Cherokee domain : 

Letters Patent to Cherokee Domain. 
United States of America. 

To all whom these presents shall come, greeting : 

Whereas by certain treaties made by the United States 
of America with the Cherokee nation of Indians, of the 
6th of May, one thousand eight hundred and twenty- 
eight, the 14th of February, one thousand eight hundred 
and thirty-three, and the 29th of December, one thousand 
eight hundred and thirty-five, it was stipulated and 
agreed, on the part of the United States, that in consid- 
eration of the promises mentioned in the said treaties, 
respectively, the United States should guarantee, secure, 
and convey, by patent to the said Cherokee Nation, cer- 
tain tracts of land ; the description of which tracts and 
the terms and conditions on which they were to be con- 
veyed and set forth in the second and third articles of the 
treaty of the 29th of December, one thousand eight hun- 
dred and thirty-five, in the words following, that is to 
say: 

Art. 2. "Whereas, by the treaty of May 6, one thou- 
sand eight hundred and twenty-eight, and the supplemen- 
tary treaty thereto of February 14, one thousand eight 
hundred and thirty-three, with the Cherokees west of the 
Mississippi, the United States guaranteed and secured to 



6 

be conveyed by patent to the Cheerokee Nation of Indians 
the following tract of country : beginning at a point on 
the old western territorial line of Arkansas Territory, 
being twenty-five miles north from the point where the 
territorial line crosses the Arkansas river ; thence running 
irora said north point south on the said territorial line, 
where said territorial line crosses Verdigris river ; thence 
down said Verdigris river to the Arkansas ; thence down 
said Arkansas to a point where a stone is placed, opposite 
the east or lower banks of Grand river, at its junction 
with the Arkansas ; thence running south forty -tour de- 
grees west one mile ; thence in a straight line to a point 
four miles northerly from the mouth of the North Fork 
of the Canadian ; "thence along the said four-mile line to 
the Canadian ; thence down the Canadian to the Arkan- 
sas ; thence down the Arkansas to a point on the Arkan- 
sas where the eastern Choctaw boundary strikes said river, 
and running thence with the western line of Arkansas 
Territory as now defined, to the southwest corner of Mis- 
souri ; thence along the western Missouri line to the land 
assigned the Senecas ; thence on the south line of the 
Senecas to the Grand river ; thence up said Grand river as 
far as the south line of the Osage reservation extended, if 
necessary ; thence up and between said south Osage line, 
extended west if necessary, and a line drawn due west 
from the point of beginning to a certain distance west, at 
which a line running north and south from said Osage 
line to said due west line will make seven millions of 
acres within the whole described boundaries. 

'^ In addition to the seven millions of acres of land thus 
provided for and bounded, the United States further guar- 
antee to the Cherokee Nation a perpetual outlet west and 
a free and unmolested use of all the country west of the 
western boundary of said seven millions of acres as far 
west as the sovereignty of the United States and their 
right of soil extend : provided, however, rhat if the saline 
or salt plain on the western prairie shall fall within said 
limits, prescribed for said outlet, the right is reserved to 
the United States to permit other tribes of red men to get 
salt on said plain in common with the Cherokees, and 
letters patent shall be issued by the United States as soon 
as practicable for the land hereby guaranteed. And 
whereas it is apprehended by the Cherokees that in the 
above cession there is not contained a sufficient q^uantity 



of land for the accomodation of the whole nation on their 
removal west of the Mississippi, the United States, in 
consideration of the sum of five hundred thousand dollars, 
therefore herehy covenant and agree to convey to the said 
Indians and their descendants, by patents in fee-simple, 
the following additional tract of land situated between the 
west line of the State of Missouri and the Osage reserva- 
tion, beginning at the southeast corner of the same^ and 
runs north along the east line of the Osage lands fifty 
miles to the northeast corner thereof; and thence east to 
the west line of the State of Missouri ; thence with said 
line south fifty miles ; thence west to the place of begin- 
ning ; estimated to contain eight hundred thousand acres 
of land; but it is expressly understood that if any of the 
lands assigned the Quapaws shall fall within the aforesaid 
bounds, the same shall be reserved and excepted out of 
the lands above granted, and a pro rata reduction shall 
be made in the price to be allowed to the United States 
for the same by the Cherokees. 

Art. 3. ^'The United States also agree that the lands 
above ceded by the treaty of February fourteen, one thou- 
sand eight hundred and thirty-three, including the outlet 
and those ceded by this treaty, shall be included in one, . 
executed to the Cherokee Nation of Indians by the Presi- 
dent of the United States according to the provisions of the 
act of May twenty-eigbt, one thousand eight hundred and 
thirty. 

"It is, however, agreed that the military reservation at 
Fort Gibson shall be held by the United States ; but 
should the United States abandon said post, and have no 
further use for the same, it shall revert to the Cherokee 
Nation. The United States shall always have the right 
to make and establish sucb post and military roads and 
posts in any part of the Cherokee countrj" as they may 
deem proper for the interest and protection of the same, 
and the free use of as much land, timber, fuel, and mate- 
rials of all kinds for the construction and the support of 
the same as may be necessary ; provided, that if the private 
rights of individuals are interfered with, a just compensa- 
tion therefore shall be made." 

And whereas the United States have caused the said 
tract of seven millions of acres, together with the said 
l>erpetual outlet_, to be surveyed in one tract, the bounda- 
ries whereof are as follows : beginning at a mound of 



8 

rocks four feet square at base and four and a half feet 
high, from which another mound of rocks bears south one 
chain, and another mound of rocks bears west one chain, 
on what has been denominated the old western territorial 
line of Arkansas Territory, twenty-five miles north of Ar- 
kansas river ; thence south twenty-one miles and twenty- 
eight chains to a post on the northeast bank of the Verdi- 
gris river, from which a hackberry, fifteen inches in 
diameter, bears south sixty-one degrees thirty-one minutes 
east forty-three links, marked C. H. L., and a cottonwood, 
forty-two inches diameter, bears south twenty-one degrees 
fifteen minutes east fifty links, marked C. R. K. L.; 
thence down the Yerdigris river, on the northeast bank, 
with its meanders, to the junction of Verdigris and Ar- 
kansas rivers ; thence from the lower bank of Verdigris 
river on the north bank of Arkansas river, south forty- 
four degrees thirteen minutes east fifty-seven chains to n 
post on the snuth bank of the Arkansas river, opposite 
the eastern bank of Neosho or Grand river, at its junctioa 
with the Arkansas, from which a red oak, thirty-six in- 
ches diameter, bears south seventy-five degrees forty-five 
minutes west twenty-four links, and a hickory, twenty- 
four inches diameter, bears south eighty-nine degrees east 
four links; thence south fifty-three degrees west one mile 
to a post, from which a rock bears north fifty-three degree, 
east fifty links, and a rock bears south eighteen degrees 
eighteen minutes west fifty links ; thence south eighteen 
degrees eighteen minutes west thirty-three miles twenty- 
eight chains and eighty links to a rock, from which an- 
other rock bears north eighteen degrees eighteen minutes 
east fifty links, and another rock bears south fifty links ; 
thence south four miles to a post on the lower bank of 
the North Fork of Canadian river, at its junction with 
Canadian river, from which a cottonwood twenty-four in- 
ches diameter bears north eighteen degrees east forty 
links, and a cottonwood fifteen inches diameter bears 
south nine degrees east fourteen links ; thence down the 
Canadian river, on its north bank to its junction with 
Arkansas river ; thence down the main channel of Arkan- 
sas river to the western boundary of the State of Arkan- 
sas, at the northern extremity of the eastern boundary of 
the lands of the Choctaws, on the south bank of Arkansas 
river, four chains and fifty-four links east of Fort Smith ; 
thence north seven degrees twenty-five minutes west, with 



9 

the western boundary of the State of Arkansas, seventy- 
six miles sixty-four chains and fifty links to the south- 
west corner of the State of Missouri ; thence north on the 
western boundary of the State of Missouri, eight miles 
forty-nine chains and fifty links, to the north bank ot 
Cowskin or Seneca river, at a mound six feet square at 
base and five feet high, in which is a post marked on the 
south side cor. N. Ch. Ld.; thence west on the southern 
boundary of the lands of the Senecas, eleven miles and 
forty-eight chains, to a post on the east bank of Neosho 
river, from which a maple eighteen inches in diameter 
bears south thirty-one degrees east seventy-two links ; 
thence up Neosho river, with its meanders, on the east 
bank to the southern boundary of the Osage lands, thirty- 
six chains and fifty links west of the southeast corner of 
the Osages, witnessed by a mound of rocks on the west 
bank of Neosho river; thence west on the southern 
boundary of the Osage lands to the line dividing the ter- 
ritory of the United States from that of Mexico, two hun- 
dred and eighty-eight miles thirteen chains aud sixty-six 
links to a mound of earth six feet square at base, and five 
and a half feet high, in which is deposited a cylinder of 
charcoal twelve inches long, four inches diameter ; thence 
south along the line of the territory of the United States 
and of Mexico, sixty miles and twelve chains, to a 
mound of earth six feet square at base and five and a half 
feet high, in which is deposited a cylinder of charcoal 
eighteen inches long and three inches diameter ; thence 
east along the northern boundary of the Creek lands, two 
hundred and seventy-three miles fifty-five chains and six- 
ty-six links, to the beginning, containing within the sur- 
vey thirteen million five hundred and seventy-four thou- 
sand one hundred and thirty-five acres and fourteen hun- 
dredths of an acre. 

And whereas the United States have also caused the 
said tract of eight hundred thousand acres to be surveyed, 
and have ascertained the boundaries thereof to be as fol- 
lows: beginning at the southeast corner of Osage lands, 
described by a rock, from which a red oak, thirty inches 
diameter, bears south twenty-seven degrees east seventy- 
six links, and a burr-oak, thirty inches diameter, bears 
south fifty-nine degrees west one chain ; and another 
burr-oak, thirty inches diameter, bears north eight degrees 
west one chain and thirty-seven links ; and another burr- 



10 

oak, forty inches diameter, bears north thirty degrees 
west one chain and eighty-one links, and running east 
twenty-five miles, to a rock on the western line of the 
State of Missouri, from which a post-oak, ten inches 
diameter, bears north forty-eight degrees thirty minutes 
east tour chains ; and a post-oak, twelve inches diameter, 
bears south sixty-two degrees east five chains ; thence 
north with the western boundary of the State of Missouri, 
fifty miles, to a mound of earth five feet square at base, 
and four and a half feet high ; thence west twenty-five 
miles to the northeast corner of the lands of the Osages, 
described by a mound of earth six feet square at base, and 
^ve feet high ; thence south along the eastern boundary 
of the Osage lands, fifty miles to the beginning, contain- 
ing eight hundred thousand acres. 

Therefore, in execution ot the agreements and stipula- 
tion contained in the said several treaties, the United 
States have given and granted, and by these presents do 
give and grant, unto the said Cherokee Nation the two 
tracts of land so surveyed and hereinbefore described, 
containing in the whole fourteen millions three hundred 
and seventy-four thousand one hundred and thirty-five 
acres and fourteen-hundredth s of an acre : to have and to 
hold the same, together with all the rights, privileges, 
and appurtenances thereunto belonging to the said Chero- 
kee Nation forever, subject, however, to the rights of the 
United States to permit other tribes of red men to get salt 
on the salt plain on the western prairie, referred [to] in 
the second article of the treaty of the twenty-ninth of 
December, one thousand eight hundred and thirty-five ; 
which salt plain has been ascertained to be within the 
limits prescribed for the outlet agreed to be granted by 
said article, and subject, also, to all the other rights re- 
served to the United States, in and by the articles herein- 
before recited^ to the extent and in the manner in which 
the said rights are so reserved, and subject also to the 
condition provided by the act of Congress of the twenty- 
eighth of May, one thousand eight hundred and thirty, 
referred to in the above recited third article, and which 
condition is that the lands hereby granted shall revert to 
the United States if the said Cherokeev Ntttrrm becomes ex- 
tinct or abandon the same. 

In testimony whereof, I, Martin Van Buren, President 
of the United States of America, have caused these letters 



11 

to be made patent, and the seal of the General Land Office 
to be hereunto affixed. 

Given under my hand, at the city of Washington, the 
thirty-first day of December, in the year of our Lord one 
thousand eight hundred and thirty-eight, and of the inde- 
pendence of the United States the sixty-third. 

[L. s.] M. VAN BUREN. 

By the President : 
H. M. Garland, 

Recorder of the General Land Office, 

The same provisions are contained in the Letters Patent 
granted to the Creeks and Choctaws. 

I think, sir, these treaties, laws and patents furnish as 
strong a title, excepting the mere right to convey, as any 
in the power of the Government to give, and one that can 
only fail when the Indians shall cease to exist, or vol- 
untarily abandon their lands, or surrender them to the 
United States. 

Can it be wondered at that these confiding children of 
the forest, just emerging from ignorance and superstition, 
should rely upon such promises, pledges and guarantees 
as they have received from our Government? 

Or is it a matter of surprise that their friends should 
look with apprehension and dread upon such laws, as this 
bill now being considered before your honorable committee, 
proposes to repeal ? 

The bill now under consideration reads as follows : 

H. R. 1132. 

42d Congress, 2d Session. 

In the House of Representatives j January 22, 1872, 

Read twice, referred to the Committee on Indian Affairs, 
and ordered to be printed. 

Mr. Shanks, on leave, introduced the following bill: 



]2 

A BILL repealing acts and parts of acts granting land, 
and certain privileges in the Indian Territory to rail- 
road companies. 

Be it enacted by the Senate and House of Representatives 
of the United States of America in Congress assembled , 
That sections nine and ten of an act entitled '* An act 
granting land to the State of Kansas to aid in the con- 
struction of the Kansas and Neosho Valley railroad, and 
its extension to Red river," approved July twenty-fifth, 
eighteen hundred and sixty-six ; and sections nine and 
ten of an act entitled '^ an act granting lands to the State 
of Kansas to aid in the construction of a southern branch 
of the Union Pacific railroad and telegraph line, from 
Fort Riley, Kansas, to Fort Smith, Arkansas," approved 
July twenty-sixth, eighteen hundred and sixty-six ; and 
so much of sections two and three of an act entitled '^ an 
act granting lands to aid in the construction of a railroad 
and telegraph line from the States of Missouri and Ar- 
kansas to the Pacific ocean," approved July twenty- 
seventh, eighteen hundred and sixty-six ; and any other 
sections or parts of sections of said acts, or any other acts 
or laws which assume to grant any lands within the 
country known as the Indian Territory,- to any railroad 
company, or to any other corporation, person, or power, 
or to pledge the United States to the extinguishment of 
the Indian title to any land within that Territory, or to 
permit any corporation, person, or power, other than the 
United States, to purchase land from any Indian nation 
or tribe within said Indian Territory, be^ and the same 
are hereby, repealed. 

1 will now briefly call your attention to laws, which 
seem to me to lay a ruthless hand upon rights which have 
become vested and sacred under the laws and guarantees 
just mentioned. 

Sections 9th and 10th of an act entitled '^ an act granting 
land to the State of Kansas, to aid in the construction of 
the Kansas and Neosho Yallev railroad and its extension 
to Red river," approved July 25th, 1866, read as follows: 

"^Section 9. And be it further enacted ^ That the same 
grants of lands through said Indian Territory, are hereby 



13 

made as provided in the first section of this act, whenever 
the Indian title shall be extinguished by treaty or other- 
wise, not to exceed the ratio per mile granted in the first 
section of this act. Provided, that said lands become a 
part of the public lands of the United States. 

'* Section 10. And he it further enacted. That said Kan- 
sas and Neosho Valley Kailroad Company, its successors 
and assigns, shall have the right to negotiate with, and ac- 
quire from any Indian nation or tribe authorized by the 
IJnited States to dispose of lands for railroad purposes, 
and from any other nation or tribe of Indians through 
whose lands said railroad may pass, subject to the ap- 
proval of the President of the United States, or from any 
company or parties incorporated or authorized for such 
purposes by such nation or tribe, or which such parties 
ma}' have acquired under the laws of the United States." 

Sections 9th and 10th of an act entitled "an act grant- 
ing lands to the State of Kansas to aid in the construction 
of a southern branch of the Union Pacific railroad and 
telegraph line from Fort Kiley, Kansas, to Fort Smith, 
Arkansas," approved July 26, 1866, are as follows : 

'^ Section 9. And he it further enacted, That the same 
grant(s) of lands through said Indian Territory are here- 
by made, as provided in the first section of this act^ when- 
ever the Indian title shall be extinguished by treaty or 
otherwise, not to exceed the ratio per mile granted in the 
first section of this act. Provided, that said lands become 
a part of the public lands of the United States. 

"Section 10. And he it further enacted, That said 
Pacific Kailroad Company, southern branch, its succes- 
sors and assigns, shall have the right to negotiate with, 
and acquire title to land for railroad purposes, from any 
Indian nation or tribe authorized by the United States to 
dispose of lands, and from any other nation or tribe of 
Indians through whose lands said railroad may pass, sub- 
ject to the approval of the United States, or from any 
company or parties incorporated or authorized for such 
purposes by such nation or tribe, or which such parties 
may have acquired under the laws of the United States." 

Now, sir, to consider the above recited acts as grants 
conferring vested rights would be a misinterpretation of 



14 

law. They merely grant the privilege to buy lands of the 
Indians, or in the event of a remote and merely possible 
contingency, to receive the same without consideration. 

The acts of Congress confer upon the railroad compa- 
nies a mere privilege to acquire title to certain lands with 
the consent of the Indians. They do not vest any title to 
the lands, for the Government had already parted with the 
title by issuing patents to the Indians. 

A mere privilege is not a vested right. The courts of 
the United States have repeatedly decided that a privilege 
might be recalled. A settler under the pre-emption laws 
of the United States is invested with the privilege of ac- 
quiring the Government title to a certain quantity of pub- 
lic land, yet the courts have repeatedly held that until he 
has actually paid for it he has acquired no vested right,, 
and that even after settlement and cultivation, the tract 
claimed may be granted to another by act of Congress, or 
that the statute granting the privilege may be repealed. 

These statutes clearly acknowledge the title to be in the 
Indians, for if they were not the owners they would not 
have the right to sell, and if they have the right to sell, 
the Government plainly has not the right to grant. The 
treaties prohibit the Indians from selling to any party 
except the United States. 

Does the Government intend by these acts to delegate 
its power to purchase lands of Indians to these railroad 
companies, with an accompanying pledge to aid them in 
the extinguishment of the Indian title ? 

If so, and the Indians are unwilling to sell, is there also 
delegated the privilege to overreach, coerce, and crush out 
those whose independent right it is to refuse to sell even to 
the United States? 

In order to understand the damaging effects of these 
acts, I will refer to those sections which give the proposed 
grants or privileges, and show in detail what they con- 
template. 



15 

These grants are all made on the condition, that if any 
of the odd sections are otherwise disposed of, the company 
has the right to select the nearest section thereto, which 
not only allows it to take the odd numhers, hut the even 
.also. 

Section 1 of the first-named act grants to the Kansas 
and Neosho Valley Railroad Company twenty sections, or 
12,800 acres per mile. 

Tha length of the road in the Indian Territory being 
about 291 miles, gives an aggregate of 3,724,800 acres. 

Section 1 of the second-named act grants to the Pacific 
Eailroad Company, southern branch, ten sections, or 6,400 
acres per mile. The length of this road is 125 miles through 
the Territory^ and gives an aggregate of 800,000 acres. 

Section 3 of an act approved July 27, 1866, granting 
lands to the Atlantic and Pacific Railroad Company, and 
to the Van Buren^ Arkansas, branch of the same, grants 
forty sections, or 25^600 acr^s per mile. The length of 
road and branch, as near as can be ascertained, is 700 
miles at least through the Territory, which gives an aggre- 
gate of 17,920,000 acres. 

Besides these, there is the thirty-fifth parallel railroad 
company, which claims six sections per mile for 350 miles, 
giving 1,244,000 acres. 

. -You will see, gentlemen, that the number of acres 

claimed by the Atlantic and Pacific railroad is 25,600 acres 
per mile, which would sell without any railroad for at least 
$5 per acre, and this would make $128,000. The cost of 
building the railroad will not exceed $25,000 per mile, 
which gives a nett profit of $103,000 per mile, besides 
owning the finished road. 

Is it anything remarkable that these companies are in 
haste to have the Indian title speedily blotted out, espe- 
cially since it has passed into an adage that *^ corporations 
have no souls ? ' ' 



16 

I Aggregating these pretended grants and claims^ the 
total amount of land directly grasped at by railroad com- 
panies in the Indian Territory we find to be 23,688,800 
acres. 

Now let us carry this estimate a little further, that we 
may see more clearly how this prospectively affects the 
citizens of this Indian Territory. 

The whole area is estimated to contain 45,440,000 acres. 
B}' referring to Colton's estimate it will be seen that 
^'the San Bois, Witchita, and Boston mountains, and 
their spurs, make one-third of this country a dreary desert 
of barren rocks and cliffs not susceptible of cultivation." 
Adding this to that claimed by the railroads, we have, 
claimed by the railroads prospectively, 23_, 688,800 acres ; 
wasteland, 15,146,666 acres, makinga total of 38,835,466 
acres to be deducted from 45,440,000 acres, the entire area, 
which leaves 6,604,534 acres as the prospective home of 
the civilized Indians when their title is extinguished. 

There are at present, it is believed, not less than 
90,000 lawful inhabitants of the Indian Territory. 

In order to give these people 160 acres per capita, as it 
is proposed in each territorial bill yet presented, it will 
require 14,400,000 acres. 

From what source now does our Government propose to 
furnish the 7,795,466 acres which the Indian Territory fails 
to supply ? (to say nothing of the other tribes which the 
I Government has agreed by treaty to locate on lands in 
I this same territory.) 

I Will it purchase from the railroad companies? Can it 
i^in any other way fulfil its pledges, that the Indian Ter- 
ritory shall be the perpetual home of these Indian tribes ? 
It surely will not leave them homeless and landless,, for are 
they not its wards ? 

Let us now turn our attention more carefully to the re- 
lations which the Government sustains to these Indians, 



17 

wlio have paid a consideration for the whole country, and 
received not only pledges and guarantees, but to-day hold 
patents, in fee-simple, never to cease until the Indians be- 
came extinct, or until the individual tribes voluntarily 
sell to the United States. 

How does this compare with the relations which the 
Government sustains to these railroad companies, which, 
have paid no consideration, and yet claim as a gratuity 
these prospective grants, and an actual pledge of our Gov- 
ernment to expedite the extinguishment of the Indian 
title? 

Surely these acts could not have received before their 
passage the attention and discussion which the interests 
involved demanded. 

But it may be urged that these grants are of no present 
force, and do not therefore affect the Indian tribes until 
their title becomes extinct. 

In reply, I would ask whence this swarm of territorial 
bills which have been thrust upon the attention of Con- 
gress since these acts were passed ; and why is the Capi- 
tol to-day thronged with men in the interests, directly or 
indirectly, of these railroad companies, who, by a strange 
coincidence^ work early and late, openly and secretly, 
with tongue, pen, and purse, to further the passage of 
some territorial bill for the Indian Territory ? 

How else can these things be explained but upon the 
hypothesis that the railroad companies hope more speedily 
in this way to make Congress wipe out with a single 
stroke the last vestige of Indian title, in order that they 
may enter at once upon this immense land estate which 
these acts will then confer, and from which they are only 
kept by this troublesome Indian title ? 

The statement has been made that Congress cannot re- 
sist the potent railroad influence — the public sentiment 
which they have industriously created — but must soon 
open the Indian country. 



18 

It is because all these territorial bills are but the legiti- 
mate oifspring of these so-called railroad grants that the 
Indians are living in terror, fearing the calamities which 
assuredly await them should a territorial bill be passed. 

They know too well that their good is not consulted — 
otherwise their consent would first be obtained in accord- 
ance with our nation's solemn pledge. 

And where, sir, shall the Indian look for relief? 

8hall he present his grievances to the President of the 
United States ? He is only the Executive, and has no 
repealing power. 

Shall he turn to the judiciary ? The Supreme Court, in 
the case of the Cherokee Nation vs. State of Georgia, has 
clearly set forth its inability to bring him aid. 

Chief Justice Marshall, in delivering the opinion of the 
Court, (9th Curtis, page 184,) says : 

''^ If it be true that the Cherokee Nation have rights, 
this is not the tribunal in which these rights are to be 
asserted. If it be true that wrongs have been inflicted, 
and that still greater are to be apprehended, this is not 
the tribunal which can redress the past or prevent the fu- 
ture." 

They have one resource left_, and that is to the Congress 
of the United States, for they well know that the law- 
making power has also the repealing power. Here they 
rest their case, and ask for justice and right. And shall 
they ask in vain ? Surely Congress will not allow them 
to be thus robbed ! 

But it may be asked, would not such repeal interfere 
with vested rights? 

I deny that these acts confer any vested rights. But, as 
I have said, they confer the privilege to negotiate, and 
can confer no vested right until the railroad companies 
have purchased the lands from the Indians, and paid them 
therefor, subject to the approval of the President of the 



19 

United States, aad received a patent, wliicli for tlie first 
time invests them with a title. 

The right of Congress to repeal acts of privilege is well 
established by the Supreme Court of the United States, in 
the case of Frisbe vs. Whitney, (9 Wallace, page 187J 
which was in relation to the privilege of pre-emption be- 
fore a settler has proved up and paid for his land. 

The courts hold '* that before such steps are taken, he 
has nothing but a contingent, personal privilege to be- 
come, without competition^, the first purchaser of the prop- 
erty, or which he may waive or abandon, during the in- 
terval between the institution of the settlement and the 
consideration nominated in the law, Congress has power 
to dispose of the land at its pleasure. 

It may recall the privilege previously conferred^ or in- 
vest any one else with the same privilege, or it may make 
an absolute grant of the land to others with or without 
consideration. 

Since these acts invest no titles to lands in railroad com- 
panies, but mere contingent privileges, is it not mani- 
festly within the constitutional power of Congress to re- 
peal them ? 

Should these privileges be held more sacred because 
one hundred and fifty men, more or less, are incorporated 
to monopolize the public domain, and then stretch forth a 
sacreligeous hand to pillage the defenceless, and break 
through the barriers that guard our national honor ? 
Should not such efi'rontry be rebuked by this Congress ? 

Let me adduce one characteristic fact to show the utter 
disregard for the interests or even existence of the Indians, 
manifested by the agents of these railroad companies. 

When the Creek government, last October, was menaced 
by a large faction, armed to overthrov/ the constitutional 
laws which had been enacted for their better adaptation 
to the advanced civilization of the Creeks, and had been 



20 

approved by the United States, when bloodshed seemed 
unavoidable, one of these agents, who, for the last four 
years has cultivated the friendship of the leaders of this 
faction and had sought to be their advisor, exultingly ex- 
claimed, ^^ The Creeks are going to fight sure, and then 
we will get their land, and their nationality will be gone 
to the devil." 

What, then, are the vested rights given to these railroad 
companies in the Indian Territory? 

The right of way, not to exceed two hundred feet in 
width, except at stations, switches, water stations, and 
crossings of rivers, where the breadth cannot exceed four 
hundred. 

This right they hold by treaty stipulations direct, and 
it is sustained by the laws of the United States and can- 
not be questioned, while the same treaties give the privi- 
lege to purchase a belt or strip of land not to exceed three 
miies in width on each side of the road through the Creek, 
Choctaw, and Chickasaw nations, with which right and 
privilege the repeal of these acts does not in any way 
interfere. 

Can these companies be invested with any further rights 
in the Indian Territory without the consent of the Indians ? 

Has Congress the power to grant, when the title has 
been in the Indians for the past iorty years, and not in 
the Government of the United States ? 

This question is well settled by the decisions of the Su- 
preme Court of the United States in the following re- 
cited cases : 

1st. (13 Peters, page 266^) Wilcox vs. Jackson. The 
court held : That whenever a tract of land has been ap- 
propriated to the public use, it it severed from the mass 
of the public domain, and subsequent laws of sale are 
not construed to embrace it, though they do not in terms 
except it." 

The court further says: ''Now this is appropriation, 



21 

for that is nothing more nor less than setting apart the 
thing for some particular use." 

^^ But we go further and say that whensoever a tract of 
land shall have once been legally appropriated to any 
purpose^ from that moment the land thus appropriated be- 
comes severed from the mass of public lands, and that no 
subsequent law or proclamation or sale would be construed 
to embrace it, or to operate upon it although no reserva- 
tion was made of it." 

2d. (5 Wheat., page 293,) Polk vs. Wendell : ^' Where 
the State had no title to the thing granted, the grant is 
void." 

3d. (10 Peters, page 662,) Mayor, &c., New Orleans, 
vs. The United States : '^ It would be a dangjerous doctrine 
to consider the issuing of a grant, as conclusive evidence 
ot a right in the power which issued it. On its face it 
may be conclusive, and cannot be controverted ; but if the 
thing granted was not in the grantor, no right passes to 
the grantee." 

4th. (1 Black, P^g^ 358,) Rice vs. Railroad Company : 
^^ Legislative grants are not warranties, and the rule of 
the common law must be applied to them, that no estate 
passes to the grantee except what was at the time in the 
grantor." 

5th. (7th Wheat., page 27): '' Where a 'State has al- 
ready granted, by a prior patent, such land is in the ad- 
verse seizen of another grantee, and a subsequent patent 
conveys neither title nor seizen." 

It will be thus seen that when lands are once vested by | 
the laws of Congress, by treaties and patents, they are 
secure from any legislative act of Congress, which cannot 
legally divest the Indians of their rights. 

I deduce another reason why this bill should be passed, 
suggested by section 17 of a bill now before the Senate 
Territorial Committee, which is in substance contained in 
every Territorial bill yet presented. 

I quote the section : ^' That the Secretary of the In- h 
terior shall, as early as practicable, cause the lands in the 
said Territory to be surveyed, and from and after such 
survey the Indian title shall be deemed and held to be 



22 

forever extinguished, and the lands to be public lands of 
the United. States, subject to all grants or pledges hereto- 
fore made by acts of Congress. Provided, that nothing in 
this act shall be construed to enlarge, repeal or impair any 
such grants or pledges heretofore made ; and the occupants 
of said Territory shall be permitted to select lands for 
themselves, or those they may represent, in severalty, un- 
der the regulations hereinafter prescribed." 

The design here is unquestionably to extinguish the In- 
dian title first, to secure the claims of the railroad com- 
panies next J and then give the citizens of the Indian Ter- 
ritory the valuable privilege of selecting homes after 
23,688_,800 acres of the choicest land in the whole Ter- 
ritory has been declared exempt from their selection, even 
though this exemption may contain their homes, endeared 
to them by the labors and associations of forty years. 

No matter how valuable and extensive his improve- 
ments, he must be declared an intruder, and driven out, 
with no provision to pay him a single dollar for his loss. 

If these acts contemplated giving such an immense 
landed estate, without a consideration, to these railroad 
companies, embracing the improvements of citizens, their 
institutions of learning and public buildings, they should 
certainly be repealed on the ground of justice and right. 

If they did not contemplate such gift, they should be re- 
pealed because of the unjust advantage sought to be ob- 
tained by a false construction. 

That this false construction is put upon these acts is 
evident, since in no bill yet introduced has there been any 
provision made whatever, from any source to pay for 
property so claimed. 

Let us now sketch the successive steps of this far 
reaching and deeply plotted scheme. 

First. An accumulation of wealth while commanding 
those who were fighting the battles of our country in her 



23 

greatest peril, or as government contractors, gave its 
originators prestige and influence. 

Second. The treaties of 1866 were drawn by these 
same parties or others in the same interest, and under 
the guise of friendship, these treaties were recommended to. 
the Indians as calculated to promote their interests, 

Third. These same parties or their coadjutors drew the 
bills, which were hastily driven through Congress by those 
friendly to the scheme, just at the close of a session, in a 
way to attract as little attention as possible, 

The design was so covert as to be hardly noticed, until 
since the persistent efforts made to pass territorial bills 
and compel the consummation. But now the whole de- 
sign is too patent to be covered up^ even by putting on an 
air of injured innocence. 

I cannot conceive for one moment that the Congress of 
these United States would intentionally pass a law ren- 
dering 50,000 people homeless at the instance of these 
railroad companies. Any such law or action would violate 
the pledged faith of the Government, and inevitably lead 
to the extinction of the Indian tribes now prosperously 
occupying that Territory. 

Gentlemen of the committee, there are but four ways 
by which the Indians of the Territory can lose the title to 
their heritage — three by their consent and one without it : 

1st. By extinction of the tribal relations. 

2d. By abandonment of the country. 

3d. By selling to the United States. 

4th. By mere might or power of the stronger, regard- 
less of all right and justice. 

These corporations are operating in the direction of the 
fourth^ since they ignore the consent of the Indians, and 
lest Congress should seem to favor this method it should 
repeal these acts under which the railroad companies claim 
authority, and henceforth leave the Indian to transact his 



24 

real estate business with the Government alone, in accord- 
ance with the treaties, laws, and patents whose validity 
has been fully recognized by the legislative departments 
for forty years. Congress has passed laws from time to 
time regulating the intercourse with them^ and made ap- 
propriations for paying the amounts due them, as speci- 
fied by the express provision of treaties. The judicial de- 
partment has made full recognition of the validity of the 
laws and treaties by declaring them to be the supreme 
law of the land. 

These Indians, holding their treaties sacred and invio- 
late, have lived and prospered under them, advancing 
step by step in civilization _, and making rapid progress in 
agriculture. They trusted to the assurance of the Gov- 
ernment that the civilized tribes should be settled in the 
Indian Territory. This plan met their approval, for they 
desired that the entire remnant of a noble race, that God 
had once placed in possession of all America, should as 
far as possible be gathered in the Indian Territory. This 
Territory contains but 71,000 square miles, set apart for 
the last home of the Indian race. 

I claim that the honor and good faith of this our demo- 
cratic, republican, and Christian Government demands 
full protection to the Indian in every right guarantied by 
laws, treaties, and patents, free from the interruption of 
land monopolies and those who make it a study to swindle 
the Indian. 



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